Executive Summary: Key Legal and Evidentiary Issues

• Extending time to appeal the Court of King’s Bench order issued on January 13, 2026 required the applicant to satisfy the Cairns v Cairns factors.
   
• Unsupported by any evidence, the applicant’s claim that courthouse staff gave him incorrect information did not excuse his filing delays.
   
• An appeal had no reasonable chance of success because his earlier notice of appeal was out of time and his 2024 claim concerned alleged events from 2017.
   
• Evidence in the applicant’s own materials showed he sought legal advice on the issue in 2017.
   
• This action duplicated a 2022 wrongful dismissal claim that was struck as limitations barred and whose appeal was deemed abandoned.
   
• Permission to appeal was required under rule 14.5(1)(b) because the order was a pre-trial decision respecting a time limit, and the applicant failed to show a serious question of general importance.
   

Facts of the case

Xiufeng Xue filed a statement of claim on October 11, 2024. He alleged that Nexen Energy, now known as CNOOC Petroleum North America ULC (CNOOC), wrongfully dismissed him on August 5, 2017. His claim also named ClearStream Energy, now known as FLINT Corp, along with FT Services and Suncor Energy Inc, as defendants on similar employment-related claims.

On November 13, 2025, an applications judge dismissed the claim as limitations barred. Xue filed a notice of appeal with the Court of King’s Bench on December 9, 2025, but it was rejected because the appeal period had expired. He then sought a fiat to file a notice of appeal despite the expired period. The Court of King’s Bench dismissed that application in an order issued on January 13, 2026.

Xue filed a notice of appeal of that order on March 3, 2026. A day later, the Case Management Officer told him he needed to apply for an extension of time to appeal. His application was not filed until July 2, 2026. Before the hearing, the Court of Appeal of Alberta directed the parties to address whether Xue also required permission to appeal under rule 14.5(1)(b) of the Alberta Rules of Court. The application was heard on September 9, 2026, and reasons were filed on October 9, 2026 (Xue v Nexen Energy ULC, 2026 ABCA 321).

Policy and legislative provisions at issue

Under rule 14.37(2)(c) of the Rules, a single appeal judge may extend time to appeal or to seek permission to appeal. The court applied the factors first set out in Cairns v Cairns, [1931] 4 DLR 819. Those factors ask:

• whether the applicant held a bona fide intention to appeal while the right existed, and whether some special circumstance excuses the failure to appeal;
• whether the delay has been explained or justified;
• whether there is an absence of serious prejudice;
• whether the applicant has taken the benefits of the judgment; and
• whether the appeal would have a reasonable chance of success.

These same factors apply to extending time to seek permission to appeal, according to Prosser v Woodhouse, 2025 ABCA 159. No single factor is determinative, and the court keeps a general discretion to extend time where justice requires it.

Rule 14.5(1)(b) requires permission to appeal pre-trial decisions respecting time limits. To obtain permission, an applicant must show three things, as set out in Kenneth John Braithwaite Professional Corporation v 1006868 Alberta Ltd, 2021 ABCA 425. First, there must be a serious question of general importance. Second, there must be a reasonable chance of success on appeal. Third, the delay must not unduly hinder the action or cause undue prejudice without proportionate benefit. The decision also referred to rule 6.14(2) of the Rules, under which the earlier notice of appeal was out of time, and to section 3(1) of the Limitations Act, RSA 2000, c L-12.

Reasoning and analysis

No special circumstance excused Xue’s failure to appeal on time, the court found. In oral argument, he blamed his filing delays on what he said was incorrect information from courthouse staff. He offered no evidence or explanation beyond that assertion.

On the merits, the court held that the appeal had no reasonable chance of success. As the January 2026 order had noted, Xue’s notice of appeal of the applications judge’s decision was filed late. His underlying claim concerned events allegedly occurring in 2017, and his own materials included evidence that he sought legal advice on the issue that year. Filed in 2024, the statement of claim fell outside the applicable limitations period.

Respondents also pointed out that this action duplicated an earlier one. On January 20, 2022, Xue had filed a wrongful dismissal claim naming Suncor, CNOOC, and FLINT Corp as defendants. A chambers judge struck that action as limitations barred on April 14, 2022. Xue filed a notice of appeal but no appeal record, and the Court of Appeal deemed the appeal abandoned on February 2, 2023. His application for leave to appeal to the Supreme Court of Canada was later dismissed.

Although dismissing the extension application was enough to decide the matter, the court added that permission to appeal was required and would not have been granted in any event. In refusing to extend time to appeal, the January 2026 order was a pre-trial decision respecting a time limit, which falls under rule 14.5(1)(b). Relying on Ozark Resources Ltd v TERIC Power Ltd, 2020 ABCA 51, the court noted that disagreement with an exercise of discretion does not amount to a question of general importance. Xue had not explained why a serious question existed and argued only that courthouse staff misled him about limitations periods. His challenge to a narrow and discretionary order did not reach the required threshold. For the reasons already given, the appeal also had no reasonable chance of success.

Ruling and overall outcome

The Court of Appeal dismissed Xue’s application to extend time to appeal. CNOOC, FLINT Corp, FT Services, and Suncor were the successful parties. Invoking rule 9.4(2)(c), the court stated it would prepare the resulting order. No damages, costs, or other monetary amount was ordered, and the decision does not address costs.